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The United States District Court for the Eastern District of Louisiana delivered an intriguing ruling in the case of In re Aries Marine Corp. The decision by Judge Lance Africk focused on the complex intersection of subrogation and offset rights within the framework of the Longshore and Harbor Workers' Compensation Act (LHWCA).
The court's verdict stipulated that a waiver of subrogation by an LHWCA carrier does not negate the carrier's right to claim an offset against future LHWCA liability. This legal intricacy arose from an accident involving a lift boat off the coast of Louisiana in the Gulf of Mexico.
Workers injured when the lift boat capsized received compensation under the LHWCA, and the carriers then sought subrogation claims to recover the benefits paid from the defendants. However, the defendants and plaintiffs contested this by invoking the waiver of subrogation clause in their contract.
Judge Africk delved into the complex nuances of the contract, ultimately concluding that the waiver applied to the owner of the rig and its "invitees." Here, the court applied Louisiana law, defining invitees as individuals who enter premises with the express or implied invitation of the occupant, usually for mutual benefit.
The carriers subsequently filed motions for reconsideration, and the court recognized that a dismissal of their claim for an offset would be a "legal error." As a result, Judge Africk amended the summary judgment to acknowledge the carriers' right to claim an offset pursuant to Section 33(f).
This ruling underscores the importance of understanding the nuanced aspects of legal provisions, even in cases where subrogation is waived, and reaffirms that carriers can still seek an offset against future LHWCA liability, ensuring a balance of rights in complex maritime compensation cases.
The U.S. Department of Labor has proposed changes to the regulatory framework governing penalties assessed against employers and insurance providers for non-compliance with reporting obligations under the Longshore & Harbor Workers’ Compensation Act.
Under the Longshore & Harbor Workers’ Compensation Act (LHWCA), compensation, medical care, and vocational rehabilitation services are provided to employees incapacitated by job-related injuries on U.S. navigable waters or adjacent areas typically used for ship-related activities. The LHWCA also stipulates survivor benefits for dependents in cases where a work-related injury leads to an employee's death.
The LHWCA allows the Office of Workers’ Compensation Programs (OWCP) to impose civil penalties against employers failing to report workplace injuries or deaths promptly and accurately.
By implementing a system of graduated penalties based on violation history, increasing measures for clarification throughout the assessment process, and expanding opportunities for employer appeals, the OWCP aims to promote accountability and ensure fairness in the process.
OWCP is accepting written comments regarding the proposed rulemaking through November 13, 2023. You may submit written comments, identified by RIN number 1240–AA17, via the Federal eRulemaking Portal.
Congress has amended the Limitation of Liability Act to remove “Small Passenger Vessels” from its protection. The amendment, passed as part of the National Defense Authorization Act for Fiscal Year 2023, will make it more difficult for vessel owners to limit their liability in accidents that cause death or injuries.
The Limitation of Liability Act was enacted in 1851 to protect shipowners from financial ruin in a maritime accident. The law allows shipowners to limit their liability to the value of the vessel and its cargo. However, the amendment to the law now excludes “Small Passenger Vessels”.
The amendment was prompted by the 2019 Conception fire, which killed 34 people. The Conception was a small passenger vessel that caught fire while anchored off the coast of California. The fire quickly spread, and many passengers were trapped below deck. The owners of the Conception were able to limit their liability under the Limitation of Liability Act, even though they were found to be negligent.
A “Small Passenger Vessel” in the United States, is defined as a vessel that is less than 100 gross tons and carries more than six passengers for hire but fewer than 150 passengers or fewer than 49 passengers overnight. This includes vessels that are chartered with the crew provided or specified by the owner or the owner's representative and vessels that are chartered with no crew provided or specified by the owner or the owner's representative.
What does this mean for passengers?
Previously, the law potentially allowed vessel owners to limit their liability to the value of the vessel and its cargo, even if they were found to be negligent. With “small passenger vessels” removed, the Limitation of Liability Act amendment means that passengers on such vessels will now have a better chance of recovering damages if they are injured or killed in an accident.
Tucked away on page 1748 of the "James M. Inhofe National Defense Authorization Act for Fiscal Year 2023" were changes to the Jones Act—the most dramatic changes since 2008.
The changes introduce something the Jones Act has never had before expressly excluded operations.
The predominant changes are as follows:
New Definition: The law introduces the term "aquaculture worker."
Exclusion from Seaman Category: Aquaculture workers are excluded from being classified as "seamen" under subsection (a) if two conditions are met: (A) State workers' compensation is available to the individual, and (B) The individual was engaged in aquaculture activities at the time of injury in a place where they had lawful access.
Looking at the reason these changes were made, the most vocal proponent of the changes we see is the East Coast Shellfish Growers Association (ECSGA). They point to the expense of Jones Act coverage and the non-standardized application of the perceived need.
Jones Act crew benefits cost the insured more than workers' compensation, with average Jones Act claims several times more expensive than the average similar State Act Claim. With the goals in mind, the changes will likely fit the bill.
However, the problems arise from the unintended consequences of these changes. The first is that the Jones Act defines aquaculture instead of relying on the Longshore Act's exact definition from the Code of Federal Regulations. The duplication rather than re-use means any case law in one is not immediately applicable to the other. Any changes to the code of Federal Regulations will also not be directly applied to the Jones Act.
The second significant change is to the newly defined subsection (a) of section 30104 of the U.S. Code. The subsection now starts with the clause "In General.—". This clause introduces more ambiguity as to who is a Jones Act Seaman. We have a specific named carve-out for Aquaculture Workers, but no limiting clause that states that it is the only carved-out operation.
In 2009 the changes to the Longshore Act that changed the jurisdiction for the repair of recreational vessels led directly to more attention on what was and was not a recreational vessel. We expect to see similar tests as to what is and is not included in these new changes. Would processing of shellfish count as aquaculture? What does "controlled" mean in cultivation? Most of the well-known Longshore caselaw about aquaculture is focused on fish canning, so we will see some new cases to follow.
As always, please get in touch with us if you have any questions, such as how best to cover these employers now that the laws are changing.
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